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Joint Family Property: Could it be shared with Person took birth, after it was partitioned among the surviving members

Civil Appeal No. 2360 of 2016

Bench: Justices Kurian Joseph; R. F. Nariman

Case Brief: The present appeal was brought before the court in connection with the suit filed by the plaintiff, where he claimed 1/8th share in the suit property against the defendants (being his father and three brothers of his father) on the ground that the suit property was ancestral property and he is being a coparcener, had a right by birth in it, as per Mitakshara law. Opposing the claim, the defendants claimed the suit property had earlier partitioned and become separate. However, the Trial Court in its decision decreed the suit in favour of Plaintiff, based on the admission made by DW-1 that suit property was ancestral property and there was no evidence furnished to prove that it was partitioned earlier. But, in the judgement of the Appellate court, it was held that the share in the suit property have to be distributed as if the grandfather of the plaintiff died intestate. And as per the findings of the Appellate Court, when section 8 of the Act[1] comes in picture, the joint family property has to be divided as per rules of intestacy and not survivorship, thus, no such property is remained to be divided, as such plaintiffs was held to be having no right in the suit property. Similarly, the High Court has also dismissed the Plaintiff’s appeal following the same line of reasoning. Thus, the Apex Court after analysing the rulings and facts put before it, observed that the proviso of Section 6 of the Act would apply on the death of grandfather, as he left behind his widow, who was a class-I female heir and as per explanation-I, a partition should be said to have been effected by operation of law, before his death, this may entitles the plaintiff to a share, however, taking note of his birth, which was taken place in 1977, after the death of grandfather, then he could not be allotted with such share. Moreover, the question arose as to whether the application of Section 8 of the Act, in 1973 would make the joint family property in the hands of father, uncles and the plaintiff no longer joint family property after the devolution of grandfather’s share, by application of said section among his class-I heirs. Thus, after analysing the various judgements of the Apex Court, the court ruled that on the death of the grandfather in 1973 the joint family property was devolved by succession under section 8 of the Act, thus the ancestral property ceased to be joint family property on his death and other coparceners and his widow held the property as tenants in common and not as joint tenants. As such, the case of plaintiff held to be not maintainable.